Civil liberties and the MBTA
REPORTS THAT the MBTA is implementing a first-in-the-nation plan to stop subway passengers for random identification checks and to question them about their activities at T-stops should alarm anyone who worries about civil liberties.
Having to carry and produce identification has historically been a method of control. In 19th century America, the requirement of carrying identity documents was for the most part limited to slaves and Asian immigrants. More recently, we have the example of identification papers in Nazi Germany and the infamous pass system used to control the movements of black South Africans. "Your papers, please," is a phrase that is alien to a free society.
More than that, it should worry anyone who cares about effective security in an age of terrorism. Random stops and ID checks have never been shown to prevent terrorism, either here or abroad. The MBTA plan is pretend security.
Under the Fourth Amendment, you have a right to be free from unconstitutional searches and seizures. In practice, however, police officers are always free to approach you on the street, at the airport, at the T, and ask for identification -- without reasonable suspicion of wrongdoing or probable cause.
You, however, have a constitutionally protected right to refuse to show any ID. You can just say no. We do not require people to carry identification, and the police have no authority to demand its production.
Even when a police officer has reason to suspect that a person may be involved in something illegal and is authorized to stop him on the street for purposes of questioning to determine whether there is "probable cause" for an arrest, there is no obligation to produce identification.
But that may soon change. Any day, the US Supreme Court is going to issue its opinion in a case in which the police are urging the court to uphold a state statute that allows them to arrest someone for refusing to provide identification during an investigatory stop. A decision in that case, Hiibel v. Sixth Judicial District Court of Nevada, is expected any day and will have profound implications for civil liberties.
Whatever the outcome, however, citizens and law enforcement alike should be skeptical of assertions that random ID stops at train and bus depots will actually make us safer.
An interim report released last month by the international human rights group, Privacy International, found no empirical link between the use of identity cards and effective antiterrorism measures. The reason? Most terrorists carry identity cards.
Consider, for example, 9/11 terrorist Mohammed Atta: He was filmed on a Logan security camera and carried a valid ID as he boarded the plane. He studiously avoided behaving suspiciously. It didn't prevent 9/11.
In contrast, the congressional hearings on the intelligence failures leading to 9/11 have taught us that we need to invest more law enforcement resources in translating and analyzing existing intelligence intercepts. This surely is a better use of scarce resources than a policy that casts the net of suspicion over anyone who uses public transportation. In effect, the MBTA is looking for a needle in a haystack by throwing more hay on the stack.
Nor is the MBTA policy fixed by implementing what Rafi Ron, the former head of Ben-Gurion Airport in Israel and reported adviser to both Logan airport and the MBTA, calls, "behavioral profiling." Too often, such "behavior profiling" is code for racial and ethnic profiling.
Just ask King Downing, the national coordinator of the ACLU's Campaign Against Racial Profiling -- who experienced what it means to be the subject of "behavioral profiling" at Logan Airport.
An African-American, Downing came to Boston last October for -- ironically -- a racial profiling meeting. He arrived at 7 a.m. on the red-eye from Seattle, and went to use a pay phone. He was then approached by a police officer who demanded that Downing show his ID. When he refused, the officer ordered Downing to leave the airport. Since he had just arrived in town, Downing left the airport to catch a taxi. The officer followed him out of the airport, however, and again demanded ID. When Downing again refused, the officer said that Downing was under arrest and ordered backup. When surrounded by police officers -- and now late for the meeting -- Downing showed his ID and was eventually allowed to leave. His allegedly suspicious behavior? Using a pay telephone.
"From what I've seen," says Downing. "Behavioral profiling is just another word for racial profiling."
Random ID checks may increase harassment of homeless people, many of whom don't carry ID. It may be used to question and detain undocumented immigrants. And it may mask racial profiling.
Allowing sweeping identification checks would substantially increase the government's power in ways that we may come to regret. But as an antiterrorism tool, it puts us on the wrong track.
Carol Rose is executive director and John Reinstein is legal director of the ACLU of Massachusetts.
